United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR AYOADE ELESINNLA (of Counsel)
For the Respondent	MS JENNIFER EADY (One of Her Majesty's Counsel) Instructed by: Messrs Cater Leydon Millard Solicitors 18c Milton Park Milton Abingdon OX14 4RP


 


SUMMARY

RACE DISCRIMINATION: Direct

VICTIMISATION DISCRIMINATION: Protected disclosure

PRACTICE AND PROCEDURE: Estoppel or abuse of process

Direct race discrimination, victimisation and protected disclosure claims. Cause of action estoppel, issue estoppel, Henderson v Henderson estoppel. Whether ET was right in holding that the Appellant was estopped from pursuing claims in a third set of proceedings on the grounds that he was relitigating matters already dealt with or which should have been dealt with in his first and second proceedings.

Cross-appeal as to whether the ET should have found that further claims were estopped instead of concluding that there were special circumstances which prevented the claims from being estopped.
 


THE HONOURABLE MR JUSTICE NELSON

1. This is an appeal against the decision of the Chairman of the Employment Tribunal, sitting alone in Brighton on 21 May 2007, when she struck out the Appellant's claims for direct race discrimination, victimisation, and protected disclosure. There is also a cross-appeal against the Chairman's refusal to strike out other parts of the Appellant's claim relating to victimisation and protected disclosure. Mr Justice Keith gave permission for the appeal to proceed to a full hearing under rule 3(10) of the Employment Appeal Tribunal Rules.
2. The proceedings, in respect of which the disputed rulings were made, were the third proceedings which the Appellant has brought against the Respondents, his employer. The first and second proceedings alleged direct race discrimination, unfair dismissal and breach of contract. Those matters were heard between 20 and 23 November 2006, and between 6 and 9 March 2007, and the decision dismissing the claims was promulgated on 8 May 2007. The decision the Appellant currently appeals against, is that he is estopped from pursuing some of the claims in the third proceedings, as in bringing them he is essentially seeking to re-litigate the matters already dealt with, or which should have been dealt with in the first and second proceedings.

The facts.

3. The Appellant, who is of Mauritian origin, has been employed in the NHS since 1 January 1986. From January 1999 he has specialised in responsibility for bed management across the Trust. He was Clinical Bed Manager until 2003 when he agreed to a nine months secondment to a new post of Re-imbursement Manager which he commenced on 1 October 2003. The Appellant was on sick leave from 8 November 2004 to 20 December 2004. On his return he was informed that the Re-imbursement Manager role would not continue after 30 December and that he would be required to return to his substantive post of Clinical Bed Manager with a changed focus. On 31 January 2005 the Claimant notified a formal grievance in relation to the cessation of his secondment in the role of Re-imbursement Manager and the suggestion that he should now undertake the role of Complex Discharge Manager. The main grievances were rejected and it was found the post of Complex Discharge Manager was substantially different from that of Clinical Bed Manager and that that latter role was redundant. The Appellant objected to the grading of the Complex Discharge Manager's job and succeeded in having it re-evaluated. It moved from band 7 to band 8A and ultimately to 8B. The Appellant sought to have it regraded further.
4. The Trust's policy was that where there was a restructuring or reorganisation of departments, vacancies were ring fenced within the affected departments so that only candidates who were at risk in the affected departments were able to apply for positions within the new structure. The post of Complex Discharge Manager was so ring fenced in respect of the Appellant's redundancy situation.
5. The Appellant pursued his formal grievances and brought a claim in the Employment Tribunal in September 2005 complaining that his post had been declared redundant without discussion, and that management had then decided that he was to go back to his previous post of Clinical Bed Manager with duties which were completely different from the original job description. He felt that he was being bullied and harassed into accepting a post of lower status and grade. The Appellant continued in his employment with the Respondent and it was agreed between them that further consideration of the grievances would be postponed.
6. A pre-hearing review took place on 6 January 2006 when it was identified that the claims brought by the Appellant were for unfair dismissal and unlawful direct race discrimination. A further review and case management hearing took place on 14 July 2006 when the issues were identified. The claim for unfair dismissal was withdrawn and dismissed and it was noted that he pursued a claim for race discrimination and disability discrimination, it having been accepted in October 2006 by the Respondent that the Appellant was disabled within the meaning of the Disability Discrimination Act 1995.
7. The Appellant alleged that the Respondent had discriminated against him on the grounds of race by denying him the opportunity to act up into a more senior post as Acting General Manager-Inpatient Access, by being discouraged from applying for such post, by deleting his post as Clinical Bed Manager and failing to treat him as a re-deployee, including informing him of all unadvertised vacancies, and by pressurising him into accepting the post of Complex Discharge Manager despite the fact that such post was at a lower grade and pay.
8. At the outset of the hearing, which commenced on 20 November 2006, the Claimant sought to argue that his race discrimination claim included a complaint of victimisation. He had used that word in his second claim presented on 9 February 2006. The Tribunal did not allow the victimisation complaint to proceed, firstly because it was not identified at the case management hearing which took place on 14 July 2006, and neither the Tribunal nor the Respondent were informed that that was an omission, and secondly because the reference to victimisation in the second claim form was in very general terms and in insufficient detail for the Respondent to respond to, and thirdly because no particulars of the allegation had ever been given.
9. The hearing proceeded until 23 November 2006 when it was adjourned to 6 March 2007. During this adjournment the Appellant became aware of an advertisement placed by the Respondent advertising the new position of Assistant Director of Capacity Planning. He responded to this by bringing the third proceedings. In his ET1 received by the Employment Tribunal on 1 March 2007 at Southampton he refers to his extant claims, referring to claims for racial discrimination, disability discrimination, failing to make reasonable adjustments and victimisation. He then stated in relation to his new claim for racial discrimination:-

"I believe that the Respondent falsely declared my post as Clinical Bed Manager redundant (sham redundancy) but has since re-advertised the post as Assistant Director of Capacity Planning which was within the remit of my role of Clinical Bed Manager. By this action, I believe the Respondent discriminated against me as it has treated me less favourable than it treated others in similar situations.

I believe that by advertising the post the Respondent's action in declaring my post to be redundant and subsequently re-advertising the post at a more senior grade to be a discriminative act."

10. Under the head of victimisation the Appellant alleged that, having made a complaint claiming race discrimination, disability discrimination and victimisation in 2005/6 he believed that he had been treated less favourably by the Respondent refusing to make a decision about the grade of his new post of Complex Discharge Manager since June 2005. The job had been inadequately evaluated and his grievance about the Respondent's failure to deal with his concerns in a reasonable time remained unresolved with grievance hearings not yet arranged. The Appellant states that he believed the Respondent's actions against him were as a direct result of him having made a protected disclosure against them by way of his discrimination claims. Their actions amounted to less favourable treatment and were discrimination against him by victimisation.
11. When the matter went back before the Employment Tribunal at Brighton some five days later on 6 March 2007 the Appellant did not make reference to this new claim or its contents, nor refer to the advertising of the new position of Assistant Director of Capacity Planning. He made no application to amend, or cross-examine or adjourn. Nor did the Respondent refer to the existence of the third proceedings.
12. The Employment Tribunal concluded the hearing of the first and second proceedings on 13 March 2007 and considered the matter in chambers on 14 – 16 March 2007 promulgating their decision on 8 May 2007. The claims were dismissed and in the process of reaching that decision the Tribunal determined that the redundancy was genuine and unrelated to the Appellant's race. The Tribunal also considered the facts relating to the grading of the Complex Discharge Manager post.
13. The Chairman who dealt with the first and second proceedings with her two colleagues, is the same chairman, sitting alone, who dealt with the third proceedings, the subject matter of this appeal.
14. In his ET1 relating to the third proceedings the Appellant states that the date when he first put the complaint relating to the third proceedings in writing to his employers was 4 October 2006.

The decision of the Employment Tribunal re the third proceedings promulgated on 28 June 2007.

15. The Tribunal dealt with the claims under three headings, direct race discrimination, victimisation and "public interest disclosure". This is made clear by the headings in paragraphs 4, 5 and 6 of the decision even though in paragraph 2 a separate heading is not given to the protected disclosure claims and it thus appears as if they are all part of the victimisation heading. There is also some confusion as whether under paragraph 5.2 the Tribunal is treating the victimisation claim as including a complaint about the false redundancy, as the Chairman herself categorises the protected disclosure claims as including such a complaint, though she does not include such a complaint in her description of the victimisation claims in paragraph 2.
16. Nevertheless the decision is clear. Where the complaint is that the Respondent had declared the post of Clinical Bed Manager redundant when that redundancy was a sham, the new claim was a continuation of that complaint and simply contained additional facts in support of it, namely the appointment of an Assistant Direct of Capacity Planning. Whether that complaint was presented as direct race discrimination, victimisation, or protected disclosure it was estopped because of the previous hearing in relation to the false redundancy. It was also, the Tribunal held, an abuse of process under the rule in Henderson v Henderson [1843] 3 Hare 313 in that the issues relating to the false redundancy and in particular the advertising of the Assistant Director of Capacity Planning could have been brought to the Tribunal's attention and raised when the matter resumed in March 2007 as the Appellant had become aware of these facts in about January 2007. Where the complaint related to the grading or the evaluation of the job of Complex Discharge Manager, estoppel did not apply as the Claimant had been specifically prevented from raising victimisation at the hearing of the first and second proceedings because it was not one of the complaints identified prior to the hearing and because Henderson v Henderson could not apply in circumstances where the Appellant was so prevented from bringing the matters to the attention of the Tribunal. Thus the claims relating to the grading or the job evaluation, whether expressed under the heading of victimisation or public interest disclosure, were not struck out, and are the subject of the cross-appeal.

The Submissions.

The Appeal

17. The Appellant submits that the Employment Tribunal erred in law or was perverse in concluding that the complaint that the Respondent failed to promote him to the new position of Assistant Director of Capacity Planning was a continuation, with new facts, of his earlier complaint that the redundancy in relation to the post of Clinical Bed Manager was a sham. The new claim was a stand-alone claim, quite distinct from whether the redundancy was sham. The Appellant ought to have been promoted to the position or had it offered to him. The creation and offering of this new position demonstrated that the redundancy was a sham. This should therefore be treated as an entirely separate and free-standing claim with the sham redundancy point as merely background.
18. It should be noted that the cause of the 1 March 2007 complaint, namely the third proceedings arose during the break in the first and second proceedings. If there had not been a break there was no basis on which the Employment Tribunal could have described the new matter as a 'continuation'.
19. Even if there was a genuine redundancy and not a sham redundancy, as the Tribunal found, the Appellant should still have been offered the job, or put into it. Furthermore the Employment Tribunal would have to investigate why he was not so treated. In any event the Tribunal would have to investigate whether the reason why the job was not offered was because the Appellant had carried out a protected act. The issue of detriment would have to be investigated and hence the finding of genuine redundancy could not answer the section 43 protected act claims.
20. As to the Henderson v Henderson point it was unrealistic to suggest that the advertising of the new post could have been raised in cross-examination. The Appellant needed to raise it as a cause of action for which he could be compensated. There is doubt as to whether the Tribunal would have permitted him to have raised it in cross-examination in view of their earlier ruling. Furthermore he could not have raised it by way of an amendment as it post dated his ET1. It should be taken into account that he was representing himself and it was unrealistic to say he should have raised it after the break. To do so would have prevented the statutory procedure being followed. The Court should also have in mind the decision in Johnson v Gore Wood & Co [2002] 2 AC 1 where Lord Bingham said that the Court in deciding these issues must look at all the facts of the case asking in a broad merits based judgment whether a party was misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before. The Appellant had neither misused nor abused the process of the Court.
21. The Respondent submits that the grounds of claim in the ET1 for the third proceedings, referring to the Appellant's post being made redundant and subsequently re-advertised at a more senior grade, demonstrate that his present complaint is that the redundancy relating to his former post of Clinical Bed Manager was a sham, an issue which has already been decided. In so far as his complaint is one of unlawful direct race discrimination he is estopped from re-litigating this cause of action and in so far as his complaint is one of unlawful race discrimination by way of victimisation and/or detriment due to a protected disclosure, he is estopped from re-litigating the issue at the heart of these complaints, as this has already been determined, namely whether there was a genuine redundancy situation.
22. The 'new' element of the complaint in the first proceedings relied upon by the Appellant, namely the reference to the position of Assistant Director of Capacity Planning, is entirely parasitic upon the Clinical Bed Manager redundancy issue. It should have been raised by the Appellant during the hearing of the first and second proceedings.
23. It is not possible for the Appellant to submit that the claim could succeed without establishing that the redundancy was a sham. It could not succeed in those circumstances and as that issue has already been determined against him he cannot raise it again. The reason why the Appellant did not apply for the job was because he said he did not need to because it was his job in any event, in other words a sham redundancy. This reinforces the fact that this is the issue which is relied upon, even though it has already been determined. What he is now saying in effect is that I have got some additional evidence to support the same case. He should have raised this in January and March 2007 but failed to do so. When the Employment Tribunal used the phrase 'continuation' it was saying no more than that this was the same case with new facts.
24. If the Appellant had applied for the new job and been rejected that could have given rise to a separate application but he didn't in fact apply because he said it was his old job, which was being re-advertised.
25. He could have raised the question of the new post and the third proceedings at the adjourned hearing in March 2007 but chose not to do so. It is not permissible to raise this matter now, as the Tribunal found.

The cross-appeal

26. The Respondent submitted that the Employment Tribunal erred in law in holding that there were special circumstances present here making the rule in Henderson v Henderson inapplicable to these aspects of the case. Unreasonable delay in resolving the grading of the Complex Discharge Manager post was the heart of this part of the claim of victimisation and this part of the claim of detriment due to the making of a qualifying disclosure. These issues were clearly before the Tribunal which heard the first and second proceedings, as can be seen from the finding of the Employment Tribunal at paragraph 45. The issues set out at paragraph 4.3 of its decision stated:-

"Did the Respondent discriminate against the Claimant on the grounds of race by pressurising him to accepting the post of Complex Discharge Manager, despite the fact that such post was at a lower grade and pay?"

27. The Appellant's own closing submissions at paragraph 63 expressly raised this issue and detailed evidence and submissions were before the Tribunal upon it as can be seen from the Respondent's closing submissions at paragraphs 55-61 and 103.
28. The fact that the Appellant raised these as factual issues rather than characterising them as a separate cause of action was his choice. All the material was present and before the Tribunal and hence Henderson v Henderson applies. The only issue is therefore whether there are special circumstances arising, which enable that authority to be disapplied.
29. The finding by the Employment Tribunal that special circumstances existed here because it had prevented the Appellant from raising these matters at the hearing cannot stand. It was not the Appellant who was prevented by the Tribunal from putting the issues before it, but the Appellant's choice, and sustained choice, not to do so. He did not include a claim for victimisation in his first or second ET1, and the mere reference to word 'victimisation' cannot, without more give rise to a claim. He did not when given the opportunity at the case management hearings in January 2006 and July 2006, when the issues were identified, seek to include victimisation then. The only conclusion which can be reached is that it was the claimant who denied himself the opportunity to make a claim for victimisation, not the Employment Tribunal which prevented him. He had chosen not to make such a claim and was clearly content that the claim should go forward as it stood, at and after the hearing of the case management conferences.
30. If the Appellant wished to challenge the ruling on whether a claim could be sustained for victimisation he should have pursued it by way of review or appeal. Nor did he apply for an adjournment or leave to amend. The EAT should not permit another hearing. The fact that the Appellant is not legally represented cannot amount to 'special circumstances'.
31. The Appellant submitted that he had to make a fresh application to bring the grading point before the Tribunal as a cause of action. It could not have been dealt with by way of amendment as it had not arisen by the time he had made his claim. The Tribunal may well have had the ET3 before it. When the Tribunal referred to 'these matters' in paragraph 5.4 that must include the grading issue. It was the matters in the third proceedings which the Appellant was prevented from bringing to their attention. The broad approach taken by the Chairman cannot properly be criticised.

Conclusions

The Appeal.

32. The doctrine of res judicata applies in Employment Tribunal proceedings. Issues which could and should have been raised in earlier proceedings will not be permitted to re-litigated. There is a strong underlying public interest in the need for finality in litigation and that one party should not be twice vexed over the same matter. (Johnson v Gore Wood & Co page 31).
33. The Employment Tribunal correctly set out the three categories of estoppel: cause of action estoppel, issue estoppel in the strict sense and issue estoppel in the wider sense as set out in Henderson v Henderson. When finding that cause of action estoppel applied to the new complaint in relation to direct race discrimination, victimisation, and public interest disclosure, it did so on the basis that the new claim was the same as the old claim with additional facts. That is what the Chairman appears to mean when she uses the word 'continuation'. It seems to me that this is the correct analysis of the situation. None of the claims which are based upon the premise of false redundancy could properly be maintained in a second claim once, as it did, the Employment Tribunal had decided upon this issue that the redundancy was genuine. The Appellant submits that the direct race discrimination complaint is a stand-alone claim distinct from whether the redundancy was a sham, and that at the very least the Employment Tribunal would have to determine why he was not promoted to or offered this new post. It would further have to determine whether the reason why the job was not offered was because the Appellant had carried out a protected act.
34. I cannot accept the Appellant's submissions. The claim form makes it abundantly clear that the new claim is based upon the redundancy being sham because the new post is the same as the old post albeit at a more senior grade. The point being sought to be litigated, whether as direct race discrimination, victimisation, or protected disclosure is the same. It is, at its base, wholly reliant upon the finding that the redundancy was false. If the finding that it was genuine stands there are no further issues which it would be appropriate for the Employment Tribunal to investigate either as to why the new post was not offered or whether a protected disclosure had taken place.
35. I have asked myself the question as to whether the advertising of a post which has similar elements to the Appellant's previous job over a year after his post was made redundant, should in itself cause the EAT to rule that the issue of redundancy should be reopened and that estoppel, whether cause of action or issue, should not apply to the facts of this case. I have concluded however that estoppel does apply. The Appellant chose to issue a new claim in relation to this matter, having not applied for the new post; he did not raise the matter at the adjourned hearing on 6 March 2007 nor indeed make any reference to it. The Respondent's witnesses had not yet given evidence but he did not seek to cross-examine them upon it, nor ask permission to do so. The inference to be drawn is that he chose to re-litigate the matter in fresh proceedings and keep those entirely separate from the hearing of the first or second proceedings. The fact that he was refused permission to pursue an unpleaded claim of victimisation is not relevant to raising further evidence on the issue of direct racial discrimination. There is no reason to suppose that an application to do so would have been rejected, but in any event the application was not made. Nor is there any reason to suppose given the timescale, that the Employment Tribunal had knowledge of the third proceedings before an application was made to combine them with the earlier proceedings. No reference was made to them by either party.
36. The Tribunal's alternative basis for striking out these elements of claim based upon the false redundancy and advertising the Assistant Director of Capacity Planning, namely that the wider estoppel as set out in Henderson v Henderson also applied, is in my judgment correct. The fresh matters could and should have been brought before the Tribunal at the adjourned hearing of 6 March 2007 onwards. I agree with the Respondent's submission upon this issue, including the proposition that the fact that the Appellant was acting as a litigant in person at the time is not in itself a special circumstance.
37. I conclude therefore that whether expressed as a cause of action estoppel or issue estoppel or the wider Henderson v Henderson estoppel, the Employment Tribunal was right to strike out those claims which were based upon the false redundancy and the advertising of the Assistant Director of Capacity Planning post.

The Cross-appeal

38. It is in my judgment difficult to understand the basis upon which the Employment Tribunal concluded that it had prevented the Appellant from bringing matters relating to the job evaluation process before it when it refused his application to add victimisation to his complaint. Firstly those matters were already before the Tribunal, albeit not as a cause of action but as evidence upon which the Appellant relied. This is clear from the Appellant's closing submissions paragraph 63, the Respondent's closing submissions paragraphs 55-61, and the Employment Tribunal's decision paragraphs 44 and 45. On the face of it therefore this was a case of issue estoppel. Secondly the Appellant had chosen not to make the grading or evaluation of the post a cause of action, rather than simply evidential material at both case management conferences. He had ample opportunity to do so then, but did not do so. It is difficult to see in such circumstances how it can be said that the Appellant was 'prevented' from putting forward the grading or evaluation issues. Although it was the Employment Tribunal who refused to permit a claim for victimisation to be made that was because the Appellant had chosen not to make one, or provide any information which could cause the Respondent to appreciate that one might be made, or enable it to defend such a claim if it was sought to be made. The Court must look at the matter in a broad merit based manner. It is therefore necessary to take into account all the circumstances including the need for finality in litigation as well as the Appellant's interests as a litigant in person in pursuing a claim. When all the circumstances are taken into account the Tribunal should properly have concluded that the Appellant was, by issuing the third proceedings, seeking to raise before the Tribunal an issue which could and should have been raised before. In that sense he was misusing or abusing the process of the court having chosen not to claim that the grading or evaluation of the post amounted to a separate cause of action on the earlier occasions when he had had opportunity to do so. No application for an adjournment in order to introduce grading or evaluation as a new cause of action was made. The agreement to adjourn the completion of the grievance procedure does not in my judgment effect the issues to be determined in this case.
39. This is essentially a perversity issue although not expressed as such by the parties, but I have reluctantly come to the conclusion that no special circumstances under Henderson v Henderson can properly be said to exist here and that the finding that they did was wrong and amounted to an error in law.
40. I have therefore concluded that the appeal should be dismissed and the cross-appeal allowed.